USCA1 Opinion
UNITED STATES COURT OF APPEALS
FOR THE FIRST CIRCUIT
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No. 93-1794
STEPHEN PUSTELL AND LOIS PUSTELL,
Plaintiffs, Appellants,
v.
LYNN PUBLIC SCHOOLS,
Defendant, Appellee.
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APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Walter Jay Skinner, Senior U.S. District Judge]
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Before
Selya, Circuit Judge,
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Coffin, Senior Circuit Judge,
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and Cyr, Circuit Judge.
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Michael P. Farris with whom Jordan W. Lorence was on brief for
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appellants.
John C. Mihos for appellee.
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March 24, 1994
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COFFIN, Senior Circuit Judge. Stephen and Lois Pustell
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brought this action challenging the constitutionality of a Lynn
School Committee requirement that conditions the approval of a
homeschooling plan on consent to home visits by the
superintendent or his representative. The district court upheld
the constitutionality of the requirement, and the Pustells now
appeal. Our review of the record and the caselaw persuades us
that the district court should have abstained until issues of
state law were resolved. We therefore vacate its judgment, and
remand for proceedings in accordance with this opinion.
I. Factual Background
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Plaintiffs Stephen and Lois Pustell are the parents of
Geneva Marie Pustell, whom they are educating at home, in
accordance with their religious beliefs. The Pustells live in
the Lynn, Massachusetts school district. Massachusetts state law
grants discretion to local school districts to determine the
standards for home schooling. See Care & Protection of Charles,
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504 N.E.2d 592, 399 Mass. 324 (Mass. 1987). As a condition of
approval of a home instruction plan, the Lynn Public Schools
require, among other things, that parents give their signed
consent to a home visit by the superintendent or his designee to
"observe and evaluate the instructional process."
In November, 1991, the Pustells met with Dr. Louis Perullo,
the assistant superintendent of the Lynn Public Schools, to
discuss their homeschooling plans. At that meeting, the Pustells
objected to the school district's home visit requirement, and
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offered an alternative consent form eliminating this requirement.
Dr. Perullo rejected the substitution, and told the Pustells that
the school district would not approve their home instruction plan
absent their written consent to periodic home visits by school
officials. The Pustells refused to offer this consent, and on
November 21, 1991 the Lynn school committee voted not to allow
the Pustells to educate their daughter at home.
The Pustells then brought suit, claiming that the home visit
policy violated their First Amendment right to the free exercise
of their religion, their Fourth Amendment right to be free from
unreasonable searches, their substantive due process right under
the Fourteenth Amendment to oversee the education of their
children, and various provisions of the Massachusetts
constitution. They sought declaratory and injunctive relief.
The district court granted summary judgment for the defendant
school district, and this appeal followed.
At oral argument, the panel questioned whether this case was
justiciable and, if it were, whether it was appropriate for a
federal court to decide the case at this juncture.1 Pointing to
the district court's statement that it was "unclear whether the
Pustells' child is currently being educated at home or in a
traditional school setting" and that "no criminal or civil
proceedings are currently pending against the Pustells based on
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1The court may raise issues of jurisdiction and abstention
sua sponte. Texas v. Florida, 306 U.S. 398, 405 (1939)
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(jurisdiction); Bellotti v. Baird, 428 U.S. 132, 143 n.10 (1976)
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(abstention).
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their refusal to submit to periodic home visits," we first
expressed concern that this case was unripe, and that we were
being asked for an advisory opinion. We then noted that several
factors made abstention a compelling option.
After argument, we allowed the parties to file supplemental
briefs addressing the questions of justiciability and abstention.
We now conclude that there is a justiciable "case or
controversy," but that the circumstances of this case make it
appropriate for application of the abstention doctrine enunciated
in Railroad Commission v. Pullman Co., 312 U.S. 496 (1941).
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II. Justiciability
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The Pustells claim that the case is reviewable because their
complaint alleged, and defendants admitted, that their daughter
is being taught at home. Nothing in the record suggests the
contrary.2 We therefore proceed on the assumption that the
Pustells currently are homeschooling.
This does not fully resolve our concerns, however. For us
to assume jurisdiction, there must be an actual, ongoing
controversy between the parties. See U.S. Const. art. III, 2,
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cl. 1; Federal Declaratory Judgment Act, 28 U.S.C. 2201
(jurisdiction to award declaratory relief exists only in "a case
of actual controversy"). Some indication that the controversy
has a concrete impact on the parties is also necessary before a
case is ripe for adjudication. Abbott Laboratories v. Gardner,
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2We note, in addition, that sworn affidavits from Lois and
Stephen Pustell, dated March 11, 1992, declaring that they are
homeschooling their daughter, are part of the appendix.
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387 U.S. 136, 148-49 (1967).3 If, for example, the record
indicated that the town of Lynn never planned to take action
against the Pustells, and had never taken enforcement action
against other parents in a similar situation, we arguably would
be put in the position of issuing an advisory opinion. Cf. Poe
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v. Ullman, 367 U.S. 497, 501-09 (1961) (finding a case unripe for
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adjudication of constitutionality of state statutes where the
lack of any evidence that, with the exception of one test case,
the statutes had ever been enforced, even in the face of actions
violating the statutes, demonstrated the state's policy of
nullification of these laws).
Although the issue is close, we are satisfied that the
controversy between the parties here is sufficiently actual and
concrete that jurisdiction is proper. The Pustells continue to
teach their child at home, despite the school committee's refusal
to approve their home instruction plan. By refusing to comply
with the policy, while continuing to homeschool their daughter,
the Pustells face possible sanctions. See Mass. Gen. Laws Ann.
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ch. 76, 2 (West Supp. 1993) (empowering state to initiate
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3In deciding whether a case is ripe for review, the court
evaluates the "fitness of the issues for judicial decision and
the hardship to the parties of withholding court consideration."
Abbott Lab., 387 U.S. at 149. The "fitness" inquiry asks whether
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the challenged action is final, and whether the issue presented
is purely legal, rather than in need of more concrete factual
development. Id. Under "hardship," the court considers whether
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the impact of the challenged action "creates a `direct and
immediate' dilemma for the parties, requiring them to choose
between costly compliance and noncompliance, at the risk of
punishment." W.R. Grace & Co. v. E.P.A., 959 F.2d 360, 364 (1st
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Cir. 1992) (quoting Abbott Lab., 387 U.S. at 152).
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truancy proceedings against parents of children absent from
school for seven full days); Mass. Gen. Laws Ann. ch. 119, 24
(West Supp. 1993) (empowering any person (including a town) to
initiate civil proceedings on behalf of children without
"necessary and proper physical or education care and discipline,"
in order to compel education for such children, and, if
appropriate, to remove the children from the custody of their
parents); see also Care & Protection of Charles, 504 N.E.2d 592
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(Mass. 1987). The dispute between the parties is therefore
concrete, and not hypothetical or abstract.
No further factual development is necessary for us to
resolve the question at issue, namely, whether the policy
requiring home visits is constitutional. The issue is therefore
"fit" for judicial resolution. See Abbott Lab., 387 U.S. at 149.
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Finally, the town has, in fact, already acted against the
Pustells by rejecting their home instruction plan and officially
barring them from teaching their daughter at home. Regardless of
the imminence of an enforcement action, the Pustells will
continue to suffer the harm of substantial uncertainty if we put
off resolving their constitutional claims. We believe they are
entitled to know whether they may continue to school their child
at home without risking sanctions. See Societe de
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Conditionnement v. Hunter Engineering, 655 F.2d 938, 944 (9th
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Cir. 1981) (actual threat of litigation not necessary for
declaratory judgment action to be justiciable); Wellesley Hills
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Realty Trust v. Mobil Oil Corp., 747 F. Supp. 93, 102 (D. Mass.
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1990) (absence of enforcement action does not render controversy
between parties remote and hypothetical).4
III. Abstention
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We recognize that federal courts have a "virtually
unflagging obligation . . . to exercise the jurisdiction given
them." Colorado River Water Cons. Dist. v. United States, 424
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U.S. 800, 817 (1976); Villa Marina Yacht Sales v. Hatteras
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Yachts, 915 F.2d 7, 12 (1st Cir. 1990). Nevertheless, certain
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exceptional circumstances warrant abstention by a federal court
from the exercise of its proper jurisdiction. See Colorado
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River, 424 U.S. at 813-17, 818-19 (detailing such circumstances).
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Under Railroad Commission v. Pullman Co., 312 U.S. 496 (1941),
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federal courts may abstain from deciding a case when a state
court's resolution of unclear state law would obviate the need
for a federal constitutional ruling. Because the federal court's
decision in these circumstances "cannot escape being a forecast
rather than a determination," abstention is justified to "avoid
the waste of a tentative decision as well as the friction of a
premature constitutional adjudication." Id. at 499-500. In this
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way, the Pullman abstention doctrine serves the dual aims of
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avoiding advisory constitutional decisionmaking, as well as
promoting the principles of comity and federalism by avoiding
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4Our conclusion that the case is ripe does not mean,
necessarily, that the timing is appropriate for injunctive
relief. The decision to grant an injunction involves a number of
additional factors. See, e.g., Planned Parenthood League of
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Massachusetts v. Bellotti, 641 F.2d 1006, 1009 (1st Cir. 1981)
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(listing criteria necessary to warrant preliminary injunctive
relief).
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needless federal intervention into local affairs. See 17A
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Charles A. Wright, Arthur R. Miller and Edward H. Cooper, Federal
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Practice and Procedure 4242 (1988).5
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In our view, the Massachusetts compulsory attendance law,
Mass. Gen. Laws Ann. ch. 76, 1 (West 1982), affords a possible
state law basis to vindicate the Pustells' claims. This law,
which requires children to attend public or private school,
exempts a child "who is being otherwise instructed in a manner
approved in advance by the superintendent or the school
committee." Id. A homeschooling program is an acceptable
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alternative to public or private school attendance. Care &
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Protection of Charles, 504 N.E.2d at 598.
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Pursuant to this statutory authority, the Lynn School
Committee has adopted regulations governing the approval of home
school instruction within its district. As interpreted by the
committee, these regulations include, inter alia, the home visit
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requirement at issue here.6
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5The fact that the Pustells challenge the home visit policy
on constitutional, not statutory, grounds does not, as they
suggest, allow us to skirt consideration of the home visit policy
on state law grounds. Plaintiffs cannot avoid abstention by
excluding crucial state law issues from their pleadings. This
practice would cede control of litigation to litigants, and
interfere with our duty to avoid unnecessary friction with states
in the regulation of their own affairs, see Pullman, 312 U.S at
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500, as well as our duty to avoid unnecessary constitutional
adjudication, see Ashwander v. Tennessee Valley Authority, 297
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U.S. 288, 345-48 (1936) (Brandeis, J., concurring).
6Thus, the regulations themselves do not explicitly require
home visits. The regulation that the school committee has
interpreted to require home visits reads as follows:
The [homeschooling] Plan must include a detailed description
of the following: . . .
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Under the regulations, the parents must sign a Letter of
Agreement giving permission to the superintendent or his designee
to "periodically observe and evaluate the instructional process
and to verify that the Home Instruction provided is in accordance
with the Home Instruction Plan as authorized by the Committee . .
. ." The school committee has interpreted the observation and
evaluation component to require a pre-arranged home visit once or
twice a year for 40-45 minutes.
The Massachusetts Supreme Judicial Court has held that "the
approval of a home school proposal must not be conditioned on
requirements that are not essential to the State interest in
ensuring that `all the children shall be educated.'" Care &
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Protection of Charles, 504 N.E.2d at 600. The court observed
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that requiring periodic standardized testing, or periodic
progress reports or dated work samples, in lieu of formal
testing, would be acceptable ways to evaluate the educational
progress of children being schooled at home. Id. at 601.
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Whether home visits may be required as part of this
evaluation process is unsettled, however. In Care & Protection
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of Charles, the court stated that "[w]ith appropriate testing
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A Statement of Agreement that the parent will allow the
Superintendent (or designee, i.e., the Principal) to
periodically:
1. assess the child's mastery of subject matter and
skills in the same manner used by the school system.
2. observe and evaluate the instructional process and
to verify that the Home Instruction Plan is being
implemented as authorized by the Committee.
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procedures or progress reports, there may be no need for periodic
on-site visits or observations of the learning environment by
school authority personnel," id. The court, however, immediately
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added "But see Matter of Kilroy." In that case, a New York
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family court upheld a home visit requirement as necessary to
evaluate home instruction to school age children. 467 N.Y.S.2d
318 (1983). These conflicting references suggest that the court
deliberately left unresolved whether home visits could be
required under Massachusetts law.
It has yet to be determined, therefore, whether the Lynn
School Committee's interpretation of the evaluation component of
its regulations, which conditions approval of home instruction on
home visits, is authorized by state law. If, as the Pustells
argue, home visits "are not essential to the State interest in
ensuring that `all the children shall be educated,'" then the
school committee could not condition the approval of the
Pustells' home school proposal on an agreement to home visits --
even to infrequent and pre-arranged home visits. Yet the Lynn
School Committee's interpretation of the requirements of the
Massachusetts compulsory education act is equally plausible,
particularly given the reference to Matter of Kilroy in Care &
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Protection of Charles.
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A dispositive state court interpretation of this issue could
eliminate entirely the need to address the constitutional issues.
If the Pustells' interpretation of state law were accepted by the
state court, the school district would have to allow an
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alternative to home visits. This would spare us from rendering
an advisory opinion on the constitutional issues. See Pullman,
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312 U.S. at 499-501; see also Catlin v. Ambach, 820 F.2d 588, 591
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(2d Cir. 1987).
Our decision that abstention is appropriate here is affected
by another consideration. Although federal courts are capable of
resolving state law issues, educational policy is a matter of
particularly local concern. See Care & Protection of Charles,
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504 N.E.2d at 598 (noting that the details of educational policy
adopted by the Massachusetts state legislature historically have
been left to the control of the people in each municipality).
The question of what information local school officials need in
order to evaluate whether homeschoolers are being educated
adequately is best resolved by those closer to the issue than
federal court judges. We therefore think it preferable to allow
the Massachusetts courts to complete the analysis begun in Care &
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Protection of Charles rather than to intervene. This would allow
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for the development of an informative record about the efficacy
of various assessment practices. Moreover, any decision by this
court about whether Lynn's home visit policy is authorized by
state law would be, at best, provisional, as the last word on the
legality of Lynn's policy under Massachusetts law lies with the
Massachusetts Supreme Judicial Court, and not with us. See
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Pullman, 312 U.S. at 499-500.
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We decline to create "needless friction" with state and
local policies, id. at 500, by preempting the state court's
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adjudication of the Pustells' claims. Accordingly, the district
court should abstain, but retain jurisdiction pending a decision
by the Massachusetts state court on the proper interpretation of
the compulsory education law. See American Trial Lawyers
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Association v. New Jersey Supreme Court, 409 U.S. 467, 469
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(1973).7
We therefore vacate the decision of the district court, and
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remand for proceedings in accordance with this opinion. Each
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party shall bear its own costs.
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7Despite our abstention, the Pustells are assured an
adequate and fair opportunity to have their federal claims heard.
See Gibson v. Berryhill, 411 U.S. 564 (1973). They may choose to
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present all claims in state court; alternatively, they may
reserve federal constitutional claims for adjudication in federal
court. See England v. Louisiana State Board of Medical
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Examiners, 375 U.S. 411, 421-22 (1964) (describing procedure for
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reserving right to litigate federal claim in federal court).
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